Financial Services Ombudsman
(Jersey) Law 2014
A LAW to establish a Financial Services Ombudsman and for related
purposes
Commencement [see endnotes]
Part 1
Interpretation
1 Interpretation[1]
In this Law, unless the context otherwise
requires –
“board” means the board of the OFSO, established by Article 2(2);
“Commission” means the Jersey Financial Services
Commission established by the Financial Services
Commission (Jersey) Law 1998;
“committee” means a committee authorized under paragraph 8(1)
of Schedule 1;
“complainant” has the meaning given by Article 7;
“financial service provider” means a person carrying on
relevant financial services business;
“Minister” means the Minister
for Sustainable Economic Development;
“OFSO” means the Office of the Financial Services
Ombudsman established by Article 2;
“Ombudsman” means a person designated as such under Article 5(1)(b),
and includes the Principal Ombudsman;
“Principal Ombudsman” means the person appointed as such
under Article 4(1);
“publish”, in relation to publication of a matter by the
OFSO, means publish the matter in a manner appearing to the OFSO to be likely
to bring the matter to the attention of those affected by it;
“relevant financial services business” has the meaning
given by Article 9;
“respondent” means a person against whom a complaint may
be entertained by virtue of Article 10;
“staff” has the meaning given by Article 4(3).
Part 2
Establishment and functions of OFSO
2 Establishment
of OFSO
(1) There is to be a body
corporate to be known as the Office of the Financial Services
Ombudsman (“OFSO”).
(2) The OFSO is to have a
board, whose members are the OFSO’s directors, consisting of –
(a) a
Chairman; and
(b) at
least 2, and no more than 4, other members.
(3) Schedule 1 makes
further provision in relation to the constitution of the OFSO.
(4) Schedule 2 makes
provision in relation to the finances of the OFSO.
(5) The States may by
Regulations amend –
(a) paragraph (2)(b),
to alter the minimum or maximum number of members;
(b) Schedule 1,
other than paragraph 11.
3 General
functions of OFSO
(1) The primary function of
the OFSO is to administer the operation of this Law to secure that complaints
about financial services are resolved –
(a) independently,
and in a fair and reasonable manner;
(b) effectively,
quickly, with minimum formality, and so as to offer an alternative to court
proceedings that is more accessible for complainants; and
(c) by
the most appropriate means, whether by mediation, referral to another forum,
determination by an Ombudsman or in any other manner.
(2) The OFSO has in
addition any other function conferred on or transferred to it under this Law or
any other enactment.
(3) The States may by
Regulations –
(a) transfer
to the OFSO any function under any other enactment, to the extent that the
function relates to complaints about financial services; and
(b) amend
this Law or any other enactment in order to give effect to any transfer of
functions to the OFSO under sub-paragraph (a).
(4) The board of the OFSO
must, in carrying out its functions, seek to protect the independence of the
OFSO, including in particular the independence of the Ombudsmen,
from –
(a) the
States of Jersey, and in particular the Minister (subject to paragraph (5)(b));
(b) persons
providing funding for the OFSO;
(c) financial
service providers;
(d) persons
who use the services of financial service providers;
(e) the
Commission; and
(f) any
other influence that might compromise its independence.
(5) Paragraph (4) does
not require the board to protect the independence of the OFSO from –
(a) any
corresponding body in Guernsey, if there is an arrangement described in Article 6(1);
(b) the
Minister, to the extent that the Minister is exercising his or her power under
paragraph 12 of Schedule 1 or under any other provision of this Law.
4 Appointment
of Principal Ombudsman and other staff of OFSO
(1) The board of the OFSO
must appoint as the Principal Ombudsman, for a period of at least 5 years,
a person appearing to the board to have the appropriate qualifications and
experience to perform the functions of the Principal Ombudsman under this Law.
(2) The
appointment of the Principal Ombudsman is to be on such terms (including terms
as to the early termination of his or her appointment and as to remuneration)
as the board considers –
(a) promote
the independence of the Principal Ombudsman; and
(b) are
otherwise appropriate.
(3) The
OFSO –
(a) must secure
the availability of a sufficient number of other suitable persons
(“staff”) to perform its functions from time to time; and
(b) may
do so in any way it considers appropriate, including without
limitation –
(i) by appointing
employees,
(ii) by
appointing agents, on the terms that it thinks fit as to the remuneration and
expenses of those agents,
(iii) by
establishing panels of self-employed persons who may be contracted on
particular occasions, and
(iv) by
contracting or otherwise arranging with another person to provide staff on any
basis.
(4) The
OFSO may not enter into or offer to enter into a contract of employment with a
person who was a board member immediately before that contract is entered into
or offered.
(5) In
respect of its employees the OFSO may, as it thinks fit –
(a) determine
terms as to remuneration, expenses, pensions and other conditions of service;
and
(b) establish
and maintain schemes, or make any other arrangements, for the payment of
pensions and other benefits.
5 Designation
of Ombudsmen
(1) The board of the OFSO
must –
(a) secure
that, among its staff, there is a sufficient number of persons who appear to
the Principal Ombudsman to have the appropriate qualifications and experience
to perform the functions of an Ombudsman under this Law; and
(b) designate
those staff members as Ombudsmen for the purpose of this Law.
(2) The appointment of a
person who is designated as an Ombudsman is to be on such terms (including
terms as to the duration and termination of his or her designation and as to
remuneration) as the board considers –
(a) promote
the independence of the Ombudsman; and
(b) are
otherwise appropriate.
6 Arrangements
with Guernsey and adaptation to European standards
(1) Paragraph (2)
applies if an arrangement is entered into by the Minister, after consulting the
OFSO, with the States of Guernsey for any or all of the following –
(a) sharing
resources or staff for the purposes of any function under this Law and of any
similar function under a corresponding Ombudsman scheme in Guernsey;
(b) aligning
any aspect of the procedures, policies, eligibility criteria or other elements
of the Ombudsman schemes of the jurisdictions;
(c) any
other form of cooperation between the separate Ombudsman schemes of the
jurisdictions; and
(d) combining
the Ombudsman schemes of the jurisdictions into a single scheme similar to the
scheme under this Law.
(2) The States may by
Regulations make such provision as they consider necessary or expedient to give
effect to that arrangement, and that provision may, without limitation,
include –
(a) provision
for conferring functions on the OFSO in relation to the Guernsey scheme, or for
transferring functions of the OFSO to the corresponding body under the Guernsey
scheme;
(b) provision
for uniting the finances of the schemes, or for allocating between the
jurisdictions the expenses of the schemes or the powers to raise income for the
schemes;
(c) provision
for transferring, wholly or partly, the employment of any employee of OFSO
(including the Principal Ombudsman) to the corresponding body under the
Guernsey scheme, or for reducing the hours and pay of such an employee when
that employee is to be offered similar work under the Guernsey scheme;
(d) provision
for sharing of information between the schemes of each jurisdiction; and
(e) provision
made by amendment of any provision of this Law except this Article and Parts 5
and 6.
(3) In the case of an
arrangement described in paragraph (1)(d), Regulations under paragraph (2)
may, without limitation, include –
(a) provision
for merging the OFSO with the corresponding body under the Guernsey scheme;
(b) provision
for transferring all of the functions of the OFSO to the corresponding body
under the Guernsey scheme, and for abolishing the OFSO following the transfer.
(4) Nothing in paragraph (2)
or (3) is to be read as –
(a) requiring
provision to be made by way of Regulations under this Article, if that provision
can instead be made –
(i) by an arrangement
described in paragraph (1) without any enactment,
(ii) by
Regulations or an Order under any other provision of this Law, or
(iii) by
any other means;
(b) preventing –
(i) a board member,
an Ombudsman, or any or all of the other staff of the OFSO, from accepting
appointment to a corresponding position under the Guernsey scheme, or
(ii) a
person appointed to any position under the Guernsey scheme from being appointed
to a corresponding position under this Law; or
(c) limiting
the terms on which any appointment of such a person may be made.
(5) The States may by
Regulations make such amendment to this Law as they consider expedient to give
effect, in relation to this Law, to any provision of –
(a) Regulation (EU)
No. 524/2013 of the European Parliament and of the Council of
21 May 2013 on online dispute resolution for consumer disputes (OJ
L 165/1, 18.6.2013);
(b) Directive 2013/11/EU
of the European Parliament and of the Council of 21 May 2013 on
alternative dispute resolution for consumer disputes (OJ
L 165/63, 18.6.2013);
(c) Directive 2008/52/EC
of the European Parliament and of the Council of 21 May 2008 on
certain aspects of mediation in civil and commercial matters (OJ L 136/3,
24.5.2008);
(d) Commission
Recommendation 98/257/EC of 30 March 1998 on the principles
applicable to the bodies responsible for out-of-court settlement of consumer
disputes (OJ L 115/31, 17.4.1998);
(e) Commission
Recommendation 2001/310/EC of 4 April 2001 on the principles for
out-of-court bodies involved in the consensual resolution of consumer disputes
(OJ L 109/56, 19.4.2001);
(f) any
other Community instrument, within the meaning of the European Communities
(Jersey) Law 1973, appearing to the States to be relevant to the functions
of the OFSO.
(6) This
Article is without prejudice to any other power to amend this Law –
(a) under
any other provision of this Law, including Article 12(8); or
(b) under
Article 2 of the European Communities Legislation (Implementation)
(Jersey) Law 1996.
Part 3
Referral of Complaints to OFSO
7 Eligible
complaint
A complaint may be referred to the OFSO if –
(a) the person (“the
complainant”) making the complaint, or on whose behalf the complaint is
made, is an eligible complainant;
(b) the complaint relates
to an act by another person, being an act that occurred in the course of
relevant financial services business carried on, in or from within Jersey, by
that other person; and
(c) the timing conditions,
set out in Article 11, are satisfied.
8 Eligible
complainant
(1) In this
Article –
“relevant act”, in relation to a complainant, means the
act that is the subject of the complainant’s complaint;
“relevant business” means the relevant financial
services business in the course of which the relevant act occurred;
“relevant provider” means the person whose act was the
relevant act (being the person carrying on the relevant business at the time of
that act, whether or not that person is or was a financial service provider at
any other time).
(2) A complainant is
eligible if the complainant –
(a) was,
at the time of the relevant act, a person falling within any of the categories
described in paragraph (3);
(b) is
not, and was not at the time of the relevant act, a financial service provider;
and
(c) at
the time of the relevant act, had the relationship required by paragraph (6)
to the relevant provider in respect of the relevant act.
(3) The categories referred
to in paragraph (2)(a) are –
(a) an
individual who, in relation to the relevant provider and the relevant act, is
acting for purposes other than his or her trade, business or profession;
(b) a
microenterprise, within the meaning of Commission Recommendation 2003/361/EC of
6 May 2003 concerning the definition of micro, small and medium-sized
enterprises (OJ L 124/36, 20.5.2003), as amended from time to time;
(c) any
other category that –
(i) relates to
charities, trusts, foundations or other bodies,
(ii) appears
to the Minister to be appropriate for this purpose, subject to paragraph (5),
and
(iii) is
specified for this purpose by the Minister by Order on the recommendation of
the OFSO.
(4) The Minister may by
Order, on the recommendation of the OFSO, amend paragraph (3)(a)
or (b) to exclude any description of individual or microenterprise
appearing to the Minister to be likely to have resources, expertise or other
characteristics rendering it reasonable to expect that description of
individual or microenterprise to use other means than the OFSO to resolve
complaints.
(5) In making an Order
under paragraph (3)(c) the Minister must take particular account
of –
(a) the
desirability of ensuring that the services of the OFSO are primarily available
to persons appearing to the Minister to be likely to lack resources, expertise
or other characteristics that would render it reasonable to expect those
persons to use other means than the OFSO to resolve complaints;
(b) if
there is an arrangement described in Article 6(1), the desirability of
aligning the scheme under this Law with the corresponding Guernsey scheme.
(6) The required
relationship for the purpose of paragraph (2)(c) is –
(a) as a
client of the relevant provider, being a person –
(i) with whom the
relevant provider transacts or has transacted relevant financial services
business, or
(ii) to
whom the relevant provider gives or has given advice about such business;
(b) as a
person attempting to become a client of the relevant provider; or
(c) any
other relationship, appearing to the person examining the complaint under Article 12(1)(a)
to be sufficiently close to give appropriate standing for the services of the
OFSO to be available to the complainant, taking account of the guidelines
published under paragraph (14).
(7) The Principal Ombudsman
must determine, and keep under review, guidelines for use under paragraph (6)(c)
by persons examining complaints under Article 12(1)(a).
(8) The guidelines may make
provision in respect of any relationship that a complainant might have to the
relevant provider in respect of the relevant act, but must include provision in
respect of a relationship that a complainant has –
(a) as a participant,
or a person on whose behalf another person is a participant, in a collective
investment fund in respect of which the relevant provider carries on the
relevant business;
(b) as a
person to or in respect of whom benefits are to be provided under a pension
scheme in respect of which the relevant provider carries on the relevant
business;
(c) as a
person for whose benefit a contract of insurance was taken out or was intended
to be taken out, or who has a right to benefit from a claim under a contract of
insurance, being a contract in respect of which the relevant provider carries
on the relevant business;
(d) as a
person who relies in the course of business on a cheque guarantee card issued
by the relevant provider by way of the relevant business;
(e) as
the true owner, or person entitled to immediate possession, of a cheque or
other instrument to which Article 5 of the Cheques (Jersey)
Law 1957 applies, or of the funds it represents, collected by way of the
relevant business by the relevant provider for the account of another person;
(f) as
a person who receives a banker’s reference given by the relevant provider
by way of the relevant business;
(g) as a
person who gives the relevant provider a guarantee or security in relation to
any credit provided by that provider by way of relevant business falling within
Article 9(1)(i);
(h) as a
person in relation to whose financial standing the relevant provider holds
information by way of by way of relevant business falling within Article 9(1)(i);
(i) as
a person who attempts to enter a relationship falling within any of sub-paragraphs (a)
to (h);
(j) as
a person against whom the relevant provider takes, or attempts to take, steps
the taking of which constitute relevant business falling within Article 9(1)(i).
(9) The provision that may
be made in the guidelines includes provision that a relationship (whether or
not one of the relationships mentioned in paragraph (8)) –
(a) is
generally to be treated as sufficiently close to justify eligibility;
(b) is
generally to be treated as not being sufficiently close to justify eligibility;
or
(c) is to
be assessed taking into account factors specified in the guidelines.
(10) The Minister may by Order,
after consulting the OFSO and the persons mentioned in paragraph (13)(a)
to (d) –
(a) amend
any of paragraphs (8)(a) to (j) or add further sub-paragraphs to paragraph (8);
(b) make
such provision as is mentioned in paragraph (9) in relation to a
relationship mentioned in paragraph (8).
(11) Before making a
recommendation to the Minister under paragraph (3)(c)(iii) or (4) the
OFSO must consult –
(a) such
persons as the Minister may specify by notice to the OFSO; and
(b) any
other person appearing to the OFSO to be appropriate.
(12) Before determining any new
guideline or any substantial amendment to a guideline, the Principal Ombudsman
must consult –
(a) the
Minister;
(b) such
persons as the Minister may specify by notice to the OFSO;
(c) any
other persons appearing to the Principal Ombudsman to be appropriate.
(13) The Minister must specify,
for the purposes of paragraphs (11)(a) and (12)(b) –
(a) if
there is an arrangement described in Article 6(1), the person appearing to
the Minister to be appropriate in relation to the corresponding Guernsey
scheme;
(b) any
body appearing to the Minister to be representative of the interests of all or
any of the persons who may be eligible complainants as a result of the proposed
Order or guideline;
(c) any
body appearing to the Minister to be representative of the interests of all or
any of any persons who are more likely to be respondents as a result of the
proposed Order or guideline; and
(d) any
other persons appearing to the Minister to be appropriate.
(14) The OFSO must publish the
guidelines, specifying a date after the publication on which any new or amended
guideline is to come into effect.
(15) In carrying out their
functions under paragraphs (6)(c) and (7), the person examining a
complaint under Article 12(1)(a) and the Principal Ombudsman must take
particular account –
(a) of
the principle that the services of the OFSO should be available for complaints
where the relationship is sufficiently close, or of such a nature, as to
mean –
(i) that acts of the
relevant provider are likely to have effects on the interests of persons having
that relationship to the relevant provider, and
(ii) that
it is fair and reasonable to expect the relevant provider to accept
responsibility for the effect of those acts on those interests; and
(b) if
there is an arrangement described in Article 6(1), of the desirability of
aligning the scheme under this Law with the corresponding Guernsey scheme.
(16) It is irrelevant for the
purposes of this Article whether the complainant has any or no connection with
Jersey (other than through the required relationship in respect of the relevant
business that was carried on, as required by Article 7(b), in or from
within Jersey).
9 Relevant
financial services business
(1) Relevant financial
services business is business, other than business exempted under paragraph (4),
that is any one or more of the following –
(a) financial
service business within the meaning of the Financial Services (Jersey)
Law 1998;
(b) the
business of an AIF, of an AIFM or of a service provider, as each of those terms
is defined by the Alternative Investment Funds
(Jersey) Regulations 2012;
(c) deposit-taking
business within the meaning of the Banking Business (Jersey)
Law 1991;
(d) the
business of a collective investment fund, within the meaning of the Collective Investment Funds
(Jersey) Law 1988, or of a functionary within the meaning of that
Law;
(e) insurance
business for the purposes of the Insurance Business (Jersey)
Law 1996;
(f) business
that would fall within any of sub-paragraphs (a) to (e) but for an
exemption or exclusion conferred by or under any of the Laws or Regulations
mentioned in those sub-paragraphs;
(g) business
that –
(i) falls within
paragraph 7 of Part B of Schedule 2 to the Proceeds of Crime (Jersey)
Law 1999, and
(ii) is
specified Schedule 2 business, within the meaning of the Proceeds of Crime
(Supervisory Bodies) (Jersey) Law 2008, in respect of which Article 10
of that Law requires the person carrying on the business to be a registered
person within the meaning of that Law;
(h) relevant
pension business, within the meaning of Schedule 3;
(i) relevant
credit business, within the meaning of Schedule 4; or
(j) relevant
ancillary business, within the meaning of paragraph (2).
(2) Relevant ancillary
business is business ancillary to any other business falling within any of paragraphs (1)(a)
to (i) (the “main business”), if –
(a) the
main business is carried on in relation to the complainant by the same person
as the ancillary business; or
(b) the
ancillary business consists of –
(i) introducing,
directly or by one or more intermediaries, persons who seek services, the
provision of which constitutes the main business, to other persons who carry on
that business, or
(ii) giving
advice with a view to making such introductions.
(3) Business that may be
ancillary for the purpose of paragraph (2) includes, without
limitation –
(a) current
account services;
(b) the
provision and operation of automated teller machines;
(c) financial
advice about the main business;
(d) designing
or establishing financial schemes or arrangements that require the provision of
a service by way of the main business.
(4) The Minister must by
Order exempt classes of business, to the extent that they would otherwise be
relevant financial services business, in relation to which the Minister
considers that it is not appropriate for the services of the OFSO to be
available.
(5) In making an Order
under paragraph (4) the Minister must take particular account
of –
(a) the
matters described in Article 8(5); and
(b) any
likely impact on respondents carrying on any class of business that may be
carried on without being registered, or holding a permit or certificate, under
any of the Laws or Regulations mentioned in paragraphs (1)(a) to (e).
(6) Before exercising the
power under paragraph (4) the Minister must consult –
(a) the
OFSO;
(b) the
Commission;
(c) if
there is an arrangement described in Article 6(1), the person appearing to
the Minister to be responsible for the corresponding scheme in Guernsey;
(d) any
body that the Minister believes is representative of the interests of all or
any of those who would be affected by the proposed Order; and
(e) such
other persons as appear to the Minister to be appropriate.
10 Respondents
(1) In
this Article “relevant provider” and “relevant act”
have the meanings given by Article 8(1).
(2) A
complaint may be entertained by the OFSO against any one or more
of –
(a) the relevant
provider (irrespective of whether that person is still a financial service
provider when the complaint is referred to the OFSO);
(b) another
person who, when the complaint is referred to the OFSO –
(i) has any liability
in relation to the relevant act, being a liability that was transferred, after
the commencement of this Part, to the person from the relevant provider, and
(ii) is
carrying on relevant financial services business (whether or not the same
business as that to which the complaint relates) in or from within Jersey; and
(c) a
person, not falling within sub-paragraph (a) or (b), who is
designated under paragraph (3).
(3) An
Ombudsman may, by notice in writing given to a person, designate that person
(the “successor”) as a respondent in relation to a complaint referred
to the OFSO, whether in addition to or in substitution for a person falling
within paragraph (2)(a) or (b), if –
(a) any
business, asset or liability (in relation to the relevant act or to any other
matter) of the relevant provider was transferred, after the commencement of
this Part and before the complaint is referred to the OFSO, to the successor
from the relevant provider;
(b) the
relevant provider no longer exists when the complaint is referred to the OFSO,
or in the opinion of the Ombudsman substantial prejudice is likely to be caused
to the complainant if the relevant provider is treated as the only respondent;
(c) when
the complaint is referred to the OFSO, the successor is carrying on relevant
financial services business (irrespective of where it is carried on and whether
it is the same business as that to which the complaint relates); and
(d) in
the opinion of the Ombudsman, after inviting and considering objections from
the successor, it is fair and reasonable in all the circumstances of the case
to treat the successor as answerable for the relevant act in any respect (and
whether jointly with any other person or otherwise).
(4) For
the purposes of paragraphs (2)(b)(i) and (3)(a) the
transfer –
(a) may
be direct, or through any other person or persons and through any number of
transactions; and
(b) may
be by agreement of the relevant provider (with the successor or any other
person), by operation of law, as part of the winding up of the relevant
provider, or in any other manner.
11 Timing
conditions
(1) The timing conditions
are that –
(a) the
act to which the complaint relates occurred on or after 1st January 2010;
(b) the
complaint is not referred to the OFSO before the complainant has, in the
opinion of an Ombudsman, given the respondent a reasonable opportunity to deal
with it; and
(c) the
complaint is referred to the OFSO on or before the expiry of the relevant
time-limit, as determined under paragraphs (4) to (8).
(2) For the purpose of paragraph (1)(b),
the Ombudsman must consider all the relevant circumstances (including any
relevant direction, code of practice, guidance, or other rule or standard,
issued by or on behalf of the Commission), but must not treat a reasonable
opportunity as extending beyond –
(a) 3 months
after the date on which, in the opinion of the Ombudsman, the respondent first
had sufficient information to be able to start to investigate the complaint; or
(b) if
sooner, the date on which the respondent notifies the complainant that the
respondent will take no further action on the complaint for any reason.
(3) An Ombudsman may treat
the timing condition in paragraph (1)(b) as satisfied if, in the opinion
of the Ombudsman, there is some exceptional reason justifying the investigation
of the complaint by the OFSO without the respondent having a reasonable
opportunity to deal with it.
(4) For the purpose of paragraph (1)(c)
the relevant time-limit is –
(a) if
the abbreviated time-limit applies, that time-limit;
(b) if
the abbreviated time-limit does not apply, the general time-limit.
(5) The general time-limit
is the period ending whichever is the later of –
(a) 6 years
after the act to which the complaint relates; and
(b) 2 years
after the complainant could reasonably have been expected to become aware that
he or she had a reason to complain in relation to the act complained of.
(6) The abbreviated
time-limit –
(a) is
the period ending 6 months after the first day on which all of the internal
procedure conditions are met; and
(b) applies
if –
(i) all of the internal
procedure conditions are met, and
(ii) the
general time-limit has not expired when the abbreviated time-limit expires.
(7) The internal procedure
conditions are –
(a) that
the respondent has established a procedure for handling complaints in relation
to the relevant financial services business to which the complaint relates;
(b) that
the procedure conforms to a model procedure published by the OFSO, or otherwise
requires the respondent to investigate the complaint, to attempt to resolve it
and to notify the complainant of the result;
(c) that
the respondent notifies the complainant in writing that the respondent has
applied the procedure to the complaint and regards the procedure as exhausted;
(d) that
that notification is given within 3 months after the date on which, in the
opinion of the Ombudsman, the respondent first had sufficient information to be
able to start to investigate the complaint; and
(e) that
the respondent, on notifying the complainant under sub-paragraph (c),
informs or reminds the complainant in writing –
(i) of the
complainant’s right to refer the complaint to the OFSO, giving details of
a means by which the OFSO may be contacted,
(ii) of
the effect of the abbreviated time-limit, specifying the date on which it
expires, and
(iii) if
the respondent has reason to believe that the general time-limit may expire
before the abbreviated time-limit, of the need for the complainant to check the
general time-limit.
(8) An Ombudsman
may –
(a) treat
the general or abbreviated time-limit as suspended during any period throughout
which, in the opinion of the Ombudsman, the complainant could not reasonably be
expected to pursue the complaint for any reason relating –
(i) the complainant
being a minor,
(ii) the
complainant’s lack of mental capacity,
(iii) some
other impediment affecting the complainant and justifying the suspension in all
the circumstances;
(b) treat
the timing condition in paragraph (1)(c) as satisfied if, in the opinion
of the Ombudsman, there is some other exceptional reason justifying the
investigation of the complaint by the OFSO despite the expiry of the relevant
time-limit.
(9) The Minister may, on
the recommendation of the OFSO, by Order –
(a) amend
paragraph (6)(a) to extend or reduce the period of the abbreviated
time-limit;
(b) amend
the internal procedure conditions in paragraph (7).
Part 4
Handling of Complaints by OFSO
12 Initial handling
of complaints referred
(1) When a complaint is
referred to the OFSO, the OFSO must –
(a) examine
whether the complaint is one which may be so referred under Part 3; and
(b) if it
is not, reject it.
(2) If the complaint is one
that may be referred to the OFSO, the OFSO may –
(a) examine
whether there are compelling reasons why it is inappropriate for the complaint
to be dealt with by the OFSO; and
(b) if
there are, reject it.
(3) Without prejudice to
the generality of paragraph (2)(a), the reasons referred to in that
sub-paragraph include (subject to whether the reason is compelling in the
particular case) that –
(a) the
complaint has no real prospect of success, such as where –
(i) the complaint is
frivolous or vexatious,
(ii) the
complainant has not suffered, and is unlikely to suffer, compensatable loss,
within the meaning of Article 16(3), or
(iii) the
complaint is evidently misconceived even on the complainant’s version of
the facts;
(b) the subject
matter of the complaint has already been appropriately dealt with, such as
where –
(i) the respondent
has already made an offer of compensation, or of a goodwill payment, that is still
open for acceptance and is fair and reasonable in relation to the circumstances
alleged by the complainant,
(ii) the
subject matter of the complaint has previously been considered or rejected by
the OFSO, and the complainant presents no evidence that is likely to affect the
outcome and was unavailable to the complainant at the time of the previous
consideration or rejection,
(iii) the
subject matter of the complaint has been the subject of legal proceedings in
which a final decision has been made, or
(iv) the
subject matter of the complaint has been finally dealt with by an independent
complaints scheme or dispute-resolution process that is comparable to the OFSO;
(c) there
is a more appropriate forum available than the OFSO, such as where –
(i) the subject
matter of the complaint is the subject of current legal proceedings, and those
proceedings are not stayed for the purpose of enabling the matter to be
referred to the OFSO,
(ii) the
subject matter of the complaint is being dealt with by an independent
complaints scheme or dispute-resolution process that is comparable to the OFSO,
(iii) the
complaint cannot be determined without deciding on a significant doubtful point
of law, and the need for resolution of that point by a court outweighs the
benefits of the OFSO procedure, or
(iv) it
would be more appropriate for the subject matter of the complaint to be dealt
with by an arbitration scheme, or another complaints scheme or
dispute-resolution process, that is comparable to the OFSO and to which the
complainant can reasonably be expected to resort;
(d) the
subject matter of the complaint is inappropriate for the OFSO, such as where
the complaint is about –
(i) employment
matters, where the complainant is an employee or former employee of a
respondent,
(ii) investment
performance, as opposed to negligent selection or management of investments,
(iii) the
legitimate exercise of the respondent’s commercial judgement, or
(iv) a
decision by the respondent exercising a discretion under a will or trust,
including any failure to consult the complainant before exercising such a discretion
in a case where there is no legal obligation to consult; or
(e) it
would be inappropriate to deal with the complaint in the circumstances, such as
in the absence of consent from another potential complainant whose interests
would be unreasonably prejudiced by proceeding without his or her consent.
(4) Rejection under paragraph (1)(b)
or (2)(b) is to be by notice in writing to the complainant and respondent,
setting out the reasons for the rejection and any provision for review.
(5) Nothing in this Article
prevents an Ombudsman determining a complaint in the respondent’s favour
on grounds for which the complaint could have been rejected under this Article.
(6) The functions under paragraphs (1)
to (4) must be delegated to an Ombudsman, or to another member of the
OFSO’s staff, and must not be carried out by the board, a member of the
board, a committee or a member of such a committee.
(7) The OFSO must publish
its policy on –
(a) the
factors that will be considered in deciding whether to reject complaints under
this Article;
(b) the
delegation of functions under paragraphs (1) to (4); and
(c) its
arrangements for review of decisions to reject a complaint, if such a decision
is delegated to a person other than an Ombudsman.
(8) The Minister may by
Order, on the recommendation of the OFSO, amend any or all of paragraphs (2)(a)
and (3)(a) to (e) to limit the reasons for which a complaint may be
rejected, if it appears expedient to do so in order to align those reasons with
any equivalent reasons in the law of any other jurisdiction or with any
European or international standard relevant to Ombudsman schemes.
13 Complaint to be
handled as Ombudsman sees fit
(1) If a complaint is not
rejected under Article 12, the Principal Ombudsman must secure that it is
allocated to an Ombudsman to supervise the investigation of the complaint with
a view to mediation, referral, determination or resolution by any other means.
(2) The Ombudsman to whom
the complaint is allocated must –
(a) handle
the complaint in such manner as he or she considers most appropriate for the
clarification of the issues and generally for the just handling of the
complaint; and
(b) have
regard to the primary function of the OFSO under Article 3(1), and in
particular, so far as it appears to the Ombudsman appropriate to do so, seek to
avoid –
(i) formality in
handling the complaint, and
(ii) any
need for legal representation for either party.
(3) Subject to paragraphs (2)
and (5), the Ombudsman may handle the complaint as he or she sees fit.
(4) Without prejudice to
the generality of paragraph (3), the Ombudsman –
(a) may
make such enquiries of the complainant and respondent and of any other person
as he or she considers appropriate;
(b) is
not bound by any enactment or rule of law relating to the admissibility of
evidence in proceedings before courts;
(c) may
consider all or any part of the complaint in public or in private and with or
without a hearing;
(d) may
at any stage indicate a provisional view on any issue and invite comment from
both parties on that view;
(e) may
invite comment from both parties on a preliminary draft of the determination,
or may issue a determination without such a prior invitation, if the Ombudsman
is satisfied that it is not necessary in the circumstances.
(5) The Ombudsman must not
take account of evidence in determining a complaint unless –
(a) both
parties have had an opportunity to see and comment on the evidence; or
(b) the
evidence has been disclosed to the respondent and not to the complainant, but
the Ombudsman is satisfied in the exceptional circumstances of the
case –
(i) that a fair
determination cannot be made without taking account of that evidence, and
(ii) that
it is necessary not to disclose that evidence to the complainant, in order to
preserve the confidentiality of information revealed by that evidence.
(6) The complainant and the
respondent must assist the Ombudsman in the discharge of the Ombudsman’s
duties under paragraph (2).
14 Allocation of
functions in relation to handling of complaints
(1) Only an Ombudsman may
make a determination of a complaint.
(2) The Ombudsman to whom
the complaint is allocated may authorize any other of the OFSO’s staff
(not being a board member or committee member), to perform any other function
in relation to a complaint, including but not limited to –
(a) investigation
of the complaint;
(b) mediation
of the complaint;
(c) taking
a provisional view of an issue and inviting comment, as described in Article 13(4)(d).
(3) A person performing a
function described in paragraph (1) or (2) in relation to a complaint
is entitled to do so free from any interference from any other person, except
the Ombudsman to whom the complaint is allocated or a person (other than a
board member or committee member) who acts at the direction of that Ombudsman.
15 Determination
(1) An Ombudsman, when
determining a complaint, must do so by reference to what is, in the opinion of
the Ombudsman, fair and reasonable in all the circumstances of the case.
(2) Without prejudice to
the generality of paragraph (1), the Ombudsman, must take into particular
account –
(a) the
relevant law;
(b) any
relevant direction, code of practice, guidance, or other rule or standard,
issued by or on behalf of the Commission;
(c) any
similar instrument issued by any other body if the Ombudsman considers it
relevant to the complaint; and
(d) what
the Ombudsman considers to have been relevant good industry practice at the
time of the act to which the complaint relates.
16 Awards and
directions
(1) If a complaint is
determined in favour of the complainant, the determination may
include –
(a) an
award against the respondent of payment, in money or money’s worth, of
such amount (“a money award”) as the Ombudsman
considers –
(i) to represent
compensation for compensatable loss as defined in paragraph (3), and
(ii) to
be fair and reasonable in all the circumstances of the case;
(b) a
direction that the respondent take such steps in relation to the complainant as
the Ombudsman considers to be fair and reasonable in all the circumstances of
the case.
(2) For the purposes of a
money award or a direction under paragraph (1) the Ombudsman –
(a) may
include an amount or step even if a court could not order that amount to be
paid or that step to be taken; and
(b) may
seek –
(i) to put the
complainant into the position that he, she or it would have been in but for the
matter complained of,
(ii) to
put the complainant into the position that he, she or it would have been in if
the respondent had carried on its business fairly and reasonably in relation to
the matter complained of, or
(iii) to
achieve any other result appearing fair and reasonable to the Ombudsman in all
the circumstances of the case.
(3) Compensatable loss
is –
(a) financial
loss;
(b) material
distress or material inconvenience; or
(c) any
other loss or damage of a kind specified by the Minister by Order,
suffered by the complainant as a result of the act complained of.
(4) The Minister may by
Order specify a maximum amount that may be included in a money award in respect
of compensatable loss under paragraph (3)(b) or (c).
(5) The steps that may be
included in a direction under paragraph (1)(b) do not include –
(a) the payment
of money or money’s worth; or
(b) any
step the effect of which is to give the complainant a benefit that has a
monetary value to the complainant that, if it had formed part of a money award,
would have resulted in a contravention of paragraph (7).
(6) If the Ombudsman is
satisfied that a respondent has failed to comply with a direction under paragraph (1)(b),
the Ombudsman may add to the determination a money award in respect of that
failure.
(7) The total money award
in respect of a complaint may not exceed the monetary limit, being
£150,000 or such other amount as may be specified by the Minister by
Order.
(8) If the Ombudsman
considers that fair compensation requires payment of an amount exceeding the
monetary limit, the Ombudsman may recommend that the respondent pay the
complainant the balance.
(9) A money
award –
(a) may
provide for the amount payable under the award to bear interest at a rate and
as from a date specified in the award (but not so as to take the total over the
limit in paragraph (7) on or before the time when the determination
becomes binding); and
(b) is
recoverable by the complainant as a debt due from the respondent.
(10) The OFSO may assist or act on
behalf of the complainant in recovering an award under paragraph (9)(b),
if –
(a) the
complainant requests the OFSO to do so, or appears unable so to request and
unable to enforce the award otherwise; and
(b) it
appears to an Ombudsman to be necessary to do so in order to maintain respect
among potential respondents for determinations under this Law.
(11) A determination may include
provision that any copy of the determination disclosed by any person (and in
any manner, including indirectly) to any person other than the complainant or
the respondent must be redacted –
(a) to
exclude the identity of the complainant or any information from which that
identity can be ascertained; and
(b) exceptionally,
to exclude any other information that the Ombudsman considers should be
private.
(12) The Ombudsman
must –
(a) before
making a determination, inform the complainant of the effect of paragraph (11)(a);
and
(b) include
in the determination a provision under paragraph (11)(a) if the
complainant so requests.
17 Costs
(1) An Ombudsman may, on
determining a complaint, award costs –
(a) against
the respondent in favour of the complainant;
(b) against
the respondent in favour of the OFSO.
(2) Costs must not be
awarded unless, in the opinion of the Ombudsman –
(a) the
payer was responsible, through improper or unreasonable conduct or unreasonable
delay, for causing additional resources to be deployed, or expenses to be incurred,
by the payee in dealing with the complaint; and
(b) the
costs represent a reasonable contribution to those resources deployed, or
expenses incurred.
(3) For the purpose of paragraph (2)
the payer is the person against whom the costs are awarded, and the payee is
the person in whose favour they are awarded.
(4) An Ombudsman making an
award of costs may order that the amount payable under the award bears interest
at a rate and as from a date specified in the determination.
(5) An amount due under an award
of costs is recoverable as a debt due to the person in whose favour the award
was made.
18 Notification and
finality of determinations
(1) Within a reasonable
time after determining a complaint the Ombudsman must give a written statement
of the determination to the respondent and to the complainant.
(2) The statement
must –
(a) give
the Ombudsman’s reasons for the determination;
(b) require
the complainant to notify the Ombudsman, on or before a date specified in the
statement and by a means so specified, if the complainant accepts the
determination; and
(c) explain
the effect of paragraphs (3) to (7).
(3) If the complainant
notifies acceptance in accordance with paragraph (2)(b), the determination
binds the respondent and the complainant.
(4) If paragraph (3)
does not apply, the determination is not binding.
(5) After the date
specified under paragraph (2)(b), a determination that is not binding
nevertheless becomes binding if –
(a) the
complainant has not notified the Ombudsman that the complainant rejects the
determination;
(b) the
complainant notifies the Ombudsman that the complainant wishes to accept the
determination and gives details of compelling reasons why the complainant could
not reasonably have been expected to notify in time; and
(c) the
Ombudsman, after inviting representations from the respondent, is satisfied
that those reasons are compelling and that it would be unjust not to allow the
complainant to accept the determination out of time.
(6) No appeal lies against
a binding determination.
(7) Neither the complainant
nor the respondent may institute or continue legal proceedings in respect of a
matter which was the subject of the complaint, after a determination of the
complaint becomes binding.
(8) The Ombudsman must
notify the respondent and the complainant of each of the following events, as
the case may be –
(a) when
a determination becomes binding under paragraph (3);
(b) when
a date specified under paragraph (2)(b) passes without the determination
becoming binding; and
(c) when
a determination becomes binding, or remains not binding, following a decision
of the Ombudsman under paragraph (5)(c).
(9) A copy of a
determination on which appears a certificate signed by an Ombudsman, stating
that the determination has become binding, is evidence that the determination
has become binding.
(10) Such a certificate purporting
to be signed by an Ombudsman is to be taken to have been duly signed unless the
contrary is shown.
Part 5
Information
19 Powers to obtain
documents and information
(1) In this
Article –
“party” means the complainant or the respondent in a
complaint;
“document” includes a document within the meaning of the
Electronic Communications
(Jersey) Law 2000 and an electronic record within the meaning of
that Law.
(2) The Ombudsman may, by
notice in writing given to a party to a complaint, require that party to
produce a document that –
(a) is
specified in the notice, or is of a description so specified; and
(b) appears
to the Ombudsman to be likely to be necessary or useful for the investigation
or determination of the complaint.
(3) The party must produce
the document before the end of such reasonable period as is specified in the
notice.
(4) A respondent who,
without reasonable excuse, contravenes paragraph (3) is guilty of an
offence and liable to a fine.
(5) If a party contravenes paragraph (3),
the Ombudsman may require the party to state, to the best of his or her
knowledge and belief, where the document is.
(6) If a document is
produced in response to a requirement imposed under paragraph (2), the
Ombudsman may –
(a) retain
the document or take copies or extracts from it; and
(b) require
the person producing the document to provide an explanation of the document.
(7) If a person claims a
lien on a document, its production under this Article does not affect the lien.
(8) A person who requires, for
the purpose of the person’s business, any document retained under this
Article, and who requests that document, must be supplied with a copy as soon
as practicable.
(9) The Ombudsman may, by
notice in writing given to a party to a complaint, require that party to
provide information that –
(a) is
specified in the notice, or is of a description so specified; and
(b) appears
to the Ombudsman to be likely to be necessary or useful for the investigation
or determination of the complaint.
(10) The party must provide the
information –
(a) before
the end of such reasonable period as may be specified in the notice; and
(b) in
such manner or form, if any, as may be specified in the notice.
(11) A statement made by a person
in response to a requirement under paragraph (6)(b) or a notice under paragraph (9)
may not be used by the prosecution in evidence against the person in any
criminal proceedings, except proceedings under paragraph (15).
(12) The Ombudsman may, relying
wholly or partly on an inference drawn from any contravention by a party of any
requirement of or under this Article –
(a) determine
any issue in the complaint to which the information or document sought appears
to be relevant; or
(b) in
the case of a contravention by a complainant, reject the complaint.
(13) Paragraph (12) applies
irrespective of whether a contravention, by a respondent, amounts also to an
offence under paragraph (4).
(14) Nothing in this Article
requires the disclosure or production by a person to an Ombudsman of
information or documents that the person would in an action in court be
entitled to refuse to disclose or produce on the grounds of legal professional
privilege.
(15) A person is guilty of an
offence, and liable to imprisonment for a term of 2 years and to a fine,
if the person provides information to the OFSO, knowing that it is false in a
material particular and intending it to be used by the OFSO for the purpose of any
function under Part 4.
(16) For the purpose of paragraph (15)
it is irrelevant whether the information –
(a) is
contained in a document or not; or
(b) is
provided under this Article or not.
(17) No proceedings for an offence
under this Article may be instituted except by or with the consent of the
Attorney General.
20 Financial
Services Commission to provide information for levy
(1) The OFSO may request
the Commission to provide details that –
(a) are
required by the OFSO to enable it to calculate or raise a levy under
paragraph 4 of Schedule 2 in relation to any year;
(b) are
held by the Commission; and
(c) relate
to persons who –
(i) are registered
with the Commission to carry on any relevant financial services business
falling within any of sub-paragraphs (a) to (e) of Article 9(1),
(ii) hold
(or are otherwise authorized by) a permit from the Commission to carry on any
such business, or
(iii) are
registered persons, within the meaning of the Proceeds of Crime
(Supervisory Bodies) (Jersey) Law 2008, in relation to whom the
Commission is the relevant supervisory body for the purpose of that Law in
respect of any relevant financial services business falling within Article 9(1)(g)
of this Law.
(2) The
Commission –
(a) must
provide the details requested under paragraph (1) in a timely manner; and
(b) may
provide the details –
(i) along with other
information, if the resources required to separate the details would unduly
prejudice the performance of other functions of the Commission, and
(ii) in
any format in which the details are held, or in any format requested by the
OFSO, at the option of the Commission.
21 Restricted
information and permitted disclosure
(1) A person who receives
information (“restricted information”) relating to the business or
other affairs of any person –
(a) under
or for the purposes of Part 4, or for the purpose of calculating or raising
a case-fee or levy under paragraph 3 or 4 of Schedule 2; or
(b) directly
or indirectly from a person who has so received it,
is guilty of an offence and liable to imprisonment for a term of
2 years and a fine if he or she discloses the information without the
consent of the person to whom it relates and (where sub-paragraph (b)
applies) the person from whom it was received.
(2) This Article does not
apply to information that –
(a) is
disclosed in the course of a public hearing held by an Ombudsman under Article 13;
(b) is
contained in or derived from a determination, unless the determination includes
provision prohibiting the disclosure of that information under Article 16(11);
(c) at
the time of the disclosure is or has already been made available to the public
from other sources; or
(d) is
disclosed in the form of a summary or collection of information so framed as
not to enable information relating to any particular person to be ascertained
from it.
(3) This Article does not
preclude the disclosure of information –
(a) for the
purpose of enabling or assisting the OFSO or any person acting on its behalf to
discharge any of its functions, other than its functions under Article 22;
(aa) without
prejudice to the generality of paragraph (2)(d), to the public by the OFSO
or any person acting on its behalf, for the purpose of explaining the incidence
of complaints, or of descriptions of complaints, if –
(i) that disclosure
is in the form of a statistical summary of information about complaints or
descriptions of complaints, and
(ii) the
summary is so framed as not to enable the public to ascertain from
it –
(A) the
substance of any particular complaint, or
(B) the
identity of any person, other than a person named in (or otherwise identifiable
from) the summary as a person against whom a complaint has been made;
(b) by
the OFSO or any person acting on its behalf –
(i) to the Viscount,
(ii) to
the Comptroller and Auditor General for the purpose of enabling or assisting
the carrying out of any of the Comptroller and Auditor General’s functions
in relation to the OFSO,
(iii) to
the Commission, or to any person acting on behalf of or appointed by or at the
request of the Commission, for the purpose of enabling or assisting the
Commission or that person to exercise any function of the Commission or any
function for which the person was so appointed, or
(iv) to
any other person for the purpose of enabling or assisting that person to
exercise, in Jersey and in relation to financial service providers, any
function conferred on that person by or under any enactment;
(c) with
a view to the investigation of a suspected offence, or with a view to the
institution of, or for the purposes of, any criminal proceedings (whether the
offence or proceedings are under this Law or otherwise);
(d) in
connection with any other proceedings arising out of this Law, or with any
proceedings conducted by or on behalf of the Commission under any of its
functions; or
(e) without
prejudice to the generality of sub-paragraph (a), by the OFSO to a body
appearing to the OFSO to be equivalent to the OFSO in another jurisdiction, if
it appears to the OFSO that disclosing the information would enable or assist
the OFSO to discharge its functions.[2]
(4) The States may by
Regulations amend paragraphs (2) and (3) by –
(a) adding
further persons or bodies to or by whom disclosure may be made and specifying
in each case the purpose for which disclosure of information may be made;
(b) amending
the circumstances in which disclosure may be made to or by any person or body
specified in those paragraphs, including the purposes for which and conditions
in which such disclosure may be made.
(5) No proceedings for an
offence under this Article may be instituted except by or with the consent of
the Attorney General.
22 Provision of
general information by OFSO
(1) Without prejudice to
the generality of the functions of the OFSO under this Law, the OFSO may in
particular provide –
(a) information
and guidance about the OFSO and its procedures, intended for actual or
potential complainants or respondents or other users of the OFSO;
(b) information
and guidance about the OFSO’s experience of complaints, and what may be
learnt from that experience;
(c) information
about determinations made by Ombudsmen;
(d) information
to the Commission on general patterns in complaints indicating contraventions
of any requirement imposed or enforced by the Commission, or on other issues
relevant to the Commission’s functions;
(e) information
to any department of the States responsible for trading standards, or to any
other body with similar responsibility, on general patterns in complaints in
relation to financial service providers not regulated by the Commission.
(2) This Article does not
permit the disclosure of any information if that disclosure constitutes an offence
under Article 21.
Part 6
Miscellaneous and Final
23 Co-operation
between OFSO and Commission
(1) Without prejudice to Article 20,
the OFSO and the Commission must each take such steps as it considers
appropriate to co-operate with the other in the exercise of their functions.
(2) The OFSO and the
Commission must prepare and maintain a memorandum describing how they intend to
comply with paragraph (1).
(3) The OFSO must publish
the memorandum, as in force from time to time, and ensure that an electronic
copy is freely available to the public.
24 Criminal
liability of directors and similar officers
(1) This Article applies if
an offence under this Law, committed by a limited liability partnership, a
separate liability partnership or a body corporate, is proved to have been
committed with the consent or connivance of, or to be attributable to neglect
on the part of –
(a) a
person who is a director, manager, secretary or other similar officer of the
body corporate, or a partner of the partnership; or
(b) a
person purporting to act in any such capacity.
(2) That
person –
(a) is
also guilty of the offence; and
(b) is
liable in the same manner as the body corporate or the partnership to the
penalty provided for the offence.
(3) If the affairs of a
body corporate are managed by its members, this Article applies in relation to
acts and defaults of a member in connection with the member’s functions
of management as if the member were a director of the body corporate.
25 Consequential and
related amendments
The States may, by Regulations, amend any enactment other than this
Law for the purpose of making such transitional, consequential incidental,
supplementary or savings provisions as they consider necessary or expedient in
respect of any provision made by or under this Law.
26 Orders and
Regulations
(1) An Order or Regulations
under this Law may contain such transitional, consequential, incidental,
supplementary or savings provisions, other than an amendment of this Law, as
appear to the Minister or the States (as the case may be) to be necessary or
expedient for the purposes of the Order or Regulations.
(2) A power under this Law
to amend, by Regulations, any provision of this Law includes the power to make
such transitional, consequential, incidental or supplementary amendments to any
other provision of this Law as appears to the States to be necessary or
expedient.
27 Citation and
commencement
(1) This Law may be cited
as the Financial Services Ombudsman (Jersey) Law 2014.
(2) Parts 1, 2 and 6
and Schedules 1 and 2 come into force on registration.
(3) Parts 3 to 5 and Schedules 3
and 4 come into force on such day or days as the States may by Act appoint.
Schedule 1[3]
(Article 2(3))
Constitution of OFSO
1 Appointment of board
members
(1) The
Minister must, by instrument in writing, appoint 2 board members (subject
to the minimum and maximum numbers under Article 2(2)) from among persons
nominated by the Chairman.
(2) The
Chairman, before nominating a member, and the Minister, before appointing a
member, must seek the views of the Appointments Commission established by Article 17
of the Employment of States
of Jersey Employees (Jersey) Law 2005 on the appointment
(without prejudice to the powers of the States or the Appointments Commission
under Article 15 of that Law).
(3) The
Minister must, at least 2 weeks before appointing a board member, present
to the States a notice of his or her intention to make the appointment.
(4) The
Chairman may nominate a person only if that person –
(a) is
not a member of the States; and
(b) has
applied to be appointed or re-appointed as a board member and has complied with
sub-paragraph (7) in respect of the application.
(5) An
Ombudsman, and any member of the OFSO’s staff, may not hold office as a
board member.
(6) In
making nominations and appointments, the Chairman and the Minister
must –
(a) seek
to ensure that persons nominated or appointed are prepared in
particular –
(i) to maintain the
independence of the OFSO as set out in Article 3(4) and paragraph 11
of this Schedule, and
(ii) to
act in the public interest, rather than as representatives of any particular
interest;
(b) ensure
that the majority of the board members are not financial service providers or
persons whose business involves representing financial service providers; and
(c) have
regard to the desirability of securing that there is such a balance as the Chairman
or Minister considers appropriate (subject to clauses (a)(ii)
and (b)) between –
(i) persons with
experience of working as or for financial service providers,
(ii) persons
with experience of using, other than as or for financial service providers, the
services of financial service providers,
(iii) persons
with experience of providing services similar to any of those provided by the
OFSO, and
(iv) persons
with experience of the financial, legal and other aspects of management of
bodies similar to the OFSO.
(7) A
person (the “nominee”) must not be nominated unless he or she has
provided –
(a) a
statement setting out the nominee’s interests, direct or indirect, in any
relevant financial services business, or in business carried on outside Jersey
that would be relevant financial services business if carried on in Jersey; and
(b) an
instrument authorizing the provision to the Minister of information as to
whether the person has been charged with, or convicted of, an
offence –
(i) under customary
law or under any enactment, or
(ii) against
any law of a country or territory outside Jersey.
(8) The
Minister must, in the instrument appointing a board member, specify a period
for that appointment of not less than 3 years (subject to
paragraph 4) and not more than 5 years.
(8A) Despite
sub-paragraph (8), the Minister may, in an instrument re-appointing a
board member, specify a period of one year for that re-appointment,
if –
(a) the
Minister and the Chairman agree that exceptional circumstances render it impracticable
to make an appointment of at least 3 years; and
(b) the
board member being re-appointed has not previously been re-appointed for one
year under this sub-paragraph.
(9) A
person appointed as a board member holds and vacates office in accordance with
the terms of his or her appointment, subject to this Law.
(10) The
terms of appointment must be such as to secure the independence of board
members in the performance of their functions.
(11) The
rights and obligations of the OFSO, and the validity of the performance of its
functions, are not affected by –
(a) a
vacancy in the office of Chairman or board member; or
(b) a
defect in the appointment of a person as Chairman or as a member of the board.
2 Appointment of Chairman
and designation of Deputy Chairman
(1) The
Minister must appoint the Chairman of the board –
(a) in
the case of the first such appointment, and in any other case where there are
no board members, from among persons appearing to the Minister to be suitable
for the position (subject to paragraph 1(5)); and
(b) in
any other case, from among board members appearing to the Minister to be so
suitable.
(2) Before
appointing a Chairman, the Minister must seek the views of the Appointments
Commission established by Article 17 of the Employment of
States of Jersey Employees (Jersey) Law 2005 on the appointment
(without prejudice to the powers of the States or the Appointments Commission
under Article 15 of that Law).
(3) The
Minister must, at least 2 weeks before appointing a Chairman, present to
the States a notice of his or her intention to make the appointment.
(4) When
appointing a Chairman the Minister must determine the period of the
appointment, expiring before or on the same date as the person’s
appointment as a board member.
(5) A
person appointed as a Chairman holds and vacates office in accordance with the
terms of his or her appointment, subject to this Law.
(6) The
Minister may re-appoint a serving Chairman (and references in this paragraph to
appointment include re-appointment).
(7) The
Chairman must designate another board member as Deputy Chairman.
(8) When –
(a) the
Chairman is unable to act through incapacity or absence; or
(b) there
is a vacancy in the office of Chairman,
the Deputy Chairman must
perform the functions of the Chairman under paragraph 1 and any functions
delegated to the Chairman under paragraph 8(3)(a).
3 Remuneration and expenses
of board members
(1) The
OFSO must pay to the board members –
(a) such
remuneration as it may determine, subject to any maximum limit directed by the
Minister (who may direct different limits in respect of the Chairman, Deputy
Chairman and any other description of board member); and
(b) reasonable
out of pocket expenses occasioned in the course of carrying out their duties.
(2) Any
maximum remuneration directed by the Minister after the appointment of a board
member does not operate to reduce the remuneration previously determined by the
OFSO in respect of that board member, but does limit any subsequent increase.
4 Cessation of office as
board member
(1) A
person ceases to be a board member if –
(a) he or
she resigns from office by giving not less than one month’s notice
in writing to the Minister;
(b) the Minister
terminates his or her appointment under sub-paragraph (2); or
(c) his
or her appointment expires under sub-paragraph (4).
(2) The
Minister may terminate the appointment of a board member, other than the
Chairman, after –
(a) consulting
the Chairman, or, if paragraph 2(8) applies –
(i) the Deputy
Chairman in relation to any board member other than the Deputy Chairman, or
(ii) such
board member or members as the Minister sees fit in relation to the Deputy Chairman;
and
(b) satisfying
himself or herself that the board member –
(i) has been absent
from meetings of the board for a period longer than 3 consecutive months
without the permission of the board,
(ii) has
become bankrupt,
(iii) is
incapacitated by physical or mental illness for a significant period, or
(iv) is
otherwise unable or unfit to discharge the functions of a board member.
(3) The
Minister must, not more than 2 weeks after terminating the appointment of
a board member, report to the States that the Minister has terminated the
appointment.
(4) A
person’s appointment as board member expires if –
(a) the
period for which the person was appointed expires without re-appointment;
(b) the
person becomes a member of the States;
(c) the
person becomes an Ombudsman, or any other member of the OFSO’s staff;
(d) the
person’s appointment as Chairman is terminated under paragraph 5(2);
or
(e) the
person completes 10 years (whether consecutive or in aggregate) of service
as a board member.
5 Cessation of office as
Chairman
(1) A
person ceases to be the Chairman if –
(a) he or
she resigns from office as Chairman by giving not less than
2 months’ notice in writing to the Minister;
(b) his
or her appointment as Chairman is terminated under sub-paragraph (2); or
(c) his
or her appointment as Chairman expires under sub-paragraph (5).
(2) The
Minister may terminate the appointment of the Chairman if the Minister is
satisfied that the Chairman –
(a) has
been absent from meetings of the board for a period longer than
3 consecutive months without the permission of the board;
(b) has
become bankrupt;
(c) is
incapacitated by physical or mental illness for a significant period; or
(d) is
otherwise unable or unfit to discharge the functions of the Chairman.
(3) The
Minister must, not more than 2 weeks after terminating the appointment of
the Chairman, report to the States that the Minister has terminated the
appointment.
(4) A
person’s appointment as Chairman expires if –
(a) the
period for which he or she was appointed expires without re-appointment; or
(b) the
person ceases to be a board member.
6 Procedure at meetings
(1) Except
as otherwise provided in this Law, the board may determine its own proceedings.
(2) The
quorum for the board is a majority of the board members.
(3) At
a meeting of the board –
(a) if
the Chairman is present, he or she is to preside;
(b) if
the Chairman is not present but the Deputy Chairman is present, the Deputy
Chairman is to preside;
(c) if
neither the Chairman nor the Deputy Chairman is present, the board members
present must elect one of their number to preside.
(4) At
a meeting of the board –
(a) each
board member has one vote on each matter for deliberation; and
(b) if a
vote is tied, it is to be taken to have been lost.
(5) A
resolution is a valid resolution of the board, even though it was not passed at
a meeting of the board, if –
(a) it is
signed or assented to by a majority of board members; and
(b) proper
notice of the proposed resolution was given to all board members.
(6) The
board must keep proper minutes of its proceedings, including minutes of any
business transacted in accordance with sub-paragraph (5).
7 Disclosure of interest and
criminal charges
(1) If
a board member has any direct or indirect personal interest in the outcome of
the deliberations of the board in relation to any matter –
(a) the
board member must disclose the nature of the interest at a meeting of the board
in person or by means of a written notice brought to the attention of the
board;
(b) the
disclosure must be recorded in the minutes of the board; and
(c) the
board member must withdraw from any deliberations of the board in relation to
that matter and must not vote upon it.
(2) A
board member may disclose the nature of an interest for the purpose of sub-paragraph (1)(a)
by giving a general notice that he or she should be regarded as interested in
any matter concerning a particular organization, partnership or body corporate,
the members or directors of which include –
(a) that
board member; or
(b) a
person through whom that board member has an indirect interest.
(3) A
board member must notify the Minister as soon as practicable after being
charged or convicted of an offence –
(a) under
customary law or under any enactment; or
(b) against
any law of a country or territory outside Jersey.
8 Committees and delegation
(1) The
board may authorize the transaction of its business by committees, established
by the board, that consist of board members alone or together with staff of the
OFSO or other persons appearing to the board to be appropriate for the committee.
(2) The
functions of appointing the Principal Ombudsman under Article 4(1) and of
designating an Ombudsman under Article 5(1)(b) may be exercised only by
the board.
(3) The
OFSO may, subject to Article 14, delegate any of its other functions under
this or any other enactment wholly or partly to –
(a) the
Chairman;
(b) one
or more board members;
(c) a
committee authorized under sub-paragraph (1);
(d) an
Ombudsman; or
(e) any
other member of the OFSO’s staff.
(4) Nothing
in this paragraph –
(a) applies
to a function reserved by or under this Law to an Ombudsman or to the Principal
Ombudsman; or
(b) authorizes
the OFSO to delegate this power of delegation.
(5) The
delegation of a function under this paragraph –
(a) does
not prevent the performance of that function by the OFSO itself; and
(b) may
be amended or revoked by the OFSO.
9 Ancillary functions
(1) The
OFSO may do anything reasonably necessary or expedient for or incidental to any
of its functions, so far as is not prohibited by any enactment.
(2) Without
prejudice to the generality of sub-paragraph (1), the OFSO may in its
corporate name –
(a) sue
and be sued;
(b) enter
into contracts; and
(c) acquire,
hold and dispose of property.
10 Seal
(1) As
a body corporate, the OFSO may have and use a common seal.
(2) The
application of the seal is to be authenticated by the signature of a person
authorized (generally or specifically) by the board for the purpose.
(3) If
a document purports to be duly executed under the seal, that document is to
be –
(a) received
in evidence; and
(b) taken
to be duly executed, unless the contrary is proved.
11 Independence from Minister and States
(1) The
OFSO and the Ombudsmen are independent of the Minister and of the States.
(2) Sub-paragraph (1)
is without prejudice to –
(a) any
provision of this Law, including in particular paragraph 12, or of any
other enactment; and
(b) any
obligation to comply with any condition lawfully attached to any funding
accepted by the OFSO from the States.
(3) Sub-paragraph (1)
is not to be construed as preventing the OFSO from being an independently
audited States body for the purposes of the Comptroller and
Auditor General (Jersey) Law 2014.
(4) Despite
sub-paragraphs (2) and (3) –
(a) the
OFSO is not to be regarded as exercising functions on behalf of the Minister or
the States;
(b) the
Ombudsmen and the OFSO’s staff, board members and committee members are
not to be regarded as employees of the States; and
(c) neither
the Minister nor the States are liable for any act, or debt or other
obligation, of the OFSO.
12 Directions and guidance from Minister
(1) The
Minister may give specific directions to the OFSO as to –
(a) the
format and content of its accounts and annual report under paragraph 1 of Schedule 2;
(b) the
setting of case-fees under paragraph 3 of Schedule 2;
(c) any
determinations as to a levy under Regulations under paragraph 4 of Schedule 2.
(2) The
Minister may give general directions to the OFSO in respect of its functions
under Article 22(1)(a) and (b).
(3) The
Minister may give guidance to the OFSO in respect of any matter on which
specific or general directions may be given.
(4) Directions
and guidance must be given in writing.
(5) The
OFSO must –
(a) act
in accordance with any specific directions given under sub-paragraph (1)
and any general directions given under sub-paragraph (2); and
(b) have
regard to any guidance given under sub-paragraph (3).
(6) The
Minister must not give guidance or general directions unless he or
she –
(a) has
first consulted the OFSO and such other persons as appear appropriate to the
Minister; and
(b) considers
that the giving of that guidance or direction –
(i) is necessary in
the public interest, and
(ii) will
not compromise the independence of the OFSO.
13 Limitation of liability
(1) A
protected person is not liable in damages for any act in the exercise or
purported exercise of any relevant function.
(2) Sub-paragraph (1)
does not apply –
(a) if it
is shown that the act was in bad faith; or
(b) so as
to prevent an award of damages made in respect of an act on the ground that the
act was unlawful as a result of Article 7(1) of the Human Rights
(Jersey) Law 2000.
(3) In
sub-paragraph (1) –
(a) a
relevant function is a power, duty or other function that may or must be
exercised or performed under this Law or under any enactment under this Law; and
(b) a
protected person is –
(i) the OFSO,
(ii) the
board,
(iii) a
board member,
(iv) a
committee member,
(v) an Ombudsman,
(vi) any
other person who exercises the relevant function as a member of the
OFSO’s staff, or
(vii) any other
person exercising a relevant function, if any enactment provides that this
paragraph is to apply to that person when exercising that function.
Schedule 2[4]
(Article 2(4))
Finances of OFSO
1 Accounts, audit and
reports
(1) The
OFSO must –
(a) keep
proper accounts and proper records in relation to the accounts;
(b) prepare
accounts in respect of each financial year and a report on its operations
during that year; and
(c) submit
the accounts and report to the Minister not later than 4 months after the
end of each financial year.
(2) The
accounts of the OFSO must distinguish clearly between amounts received as case
fees, levy and other income.
(3) The
Minister must lay a copy of the accounts and report prepared by the OFSO before
the States not later than 2 months after receiving them from the OFSO.
(4) The
OFSO must publish each report.
(5) The
accounts of the OFSO must –
(a) be
audited by auditors appointed in respect of each financial year by the board
and qualified for appointment as auditors of a company by virtue of Article 113
of the Companies
(Jersey) Law 1991; and
(b) be
prepared in accordance with generally accepted accounting principles and show a
true and fair view of the profit or loss of the OFSO for the period and of the
state of the OFSO’s affairs at the end of the period.
(6) This
Article is without prejudice to any additional requirements in relation to
accounts that are imposed by the Public Finances
(Jersey) Law 2019 or any other enactment.
(7) In
this paragraph, and in paragraph 2, “financial year” means the
period beginning with the day on which this Schedule comes into force and
ending with the 31st day of December next following, and each subsequent period
of 12 months ending with the 31st day of December.
2 Budget
(1) The
OFSO must, before the start of each financial year (or as soon as practicable
after that start, in the case of the first such year), adopt an annual budget
which has been approved by the Minister.
(2) The
OFSO may, with the approval of the Minister, vary the budget for a financial
year at any time after its adoption.
(3) The
annual budget must include an indication of –
(a) the
distribution of resources deployed in the operation of the OFSO; and
(b) the
amounts of income of the OFSO arising or expected to arise from the operation
of the OFSO.
(4) The
board must secure –
(a) that
the establishment and operation of the OFSO are funded primarily by financial
service providers, in a manner that maintains the OFSO’s independence
from those funding it; and
(b) that
the service provided by the OFSO is generally free to complainants.
(5) Accordingly,
the fees under paragraph 3 and the levy under paragraph 4 must be set
at such a level as is necessary that, in aggregate and taken with any other
resources of the OFSO, they –
(a) raise
sufficient income to enable the OFSO to carry out its functions under this Law;
and
(b) provide
a reserve of such amount as the OFSO considers necessary for carrying out such
functions.
(6) Nothing
in sub-paragraph (5) is to be read as requiring the OFSO to set any
case-fee or levy in any particular financial year, if the board considers that
its duty under sub-paragraph (4)(a) can be met without doing so.
(7) Sub-paragraph (8)
applies in relation to any financial year if at any time in that
year –
(a) there
is in force in or under the Guernsey Law a provision equivalent to sub-paragraph (8)(b)
requiring cooperation with OFSO; and
(b) there
is an arrangement described in Article 6(1)(a) for the sharing of
resources, which provides for the finances of the schemes to be united.
(8) In
relation to that financial year –
(a) the
references in sub-paragraphs (1) to (6) to financial service providers, fees,
levy, resources, OFSO, income, functions and reserve are to be read as
including references to the equivalents of those terms in any enactment in or
under the Guernsey Law;
(b) the
OFSO must cooperate with the body that is equivalent to OFSO under the Guernsey
Law in adopting and operating a joint budget, including a joint reserve;
(c) the
OFSO must publish the arrangement mentioned in sub-paragraph (7)(b) and
ensure that an electronic copy is freely available to the public;
(d) paragraph 1
is to be read as referring to joint accounts, records and reports for the OFSO
and the body that is equivalent to OFSO under the Guernsey Law, and the OFSO
must cooperate with that body in carrying out its functions under that
paragraph; and
(e) the
OFSO must report to the Minister if it becomes aware that the condition in sub-paragraph (7)(a)
is no longer met.
(9) In
sub-paragraphs (7) and (8) “Guernsey Law” means the Financial
Services Ombudsman (Bailiwick of Guernsey) Law, 2014 of the Bailiwick of
Guernsey, as amended from time to time.
3 Case-fees
(1) The
States may by Regulations provide for fees (“case-fees”) to be
payable by respondents to the OFSO in respect of complaints against them.
(2) Without
prejudice to the generality of sub-paragraph (1), Regulations under that
sub-paragraph may –
(a) give
the OFSO the power to prescribe a scheme of case-fees, by publishing the scheme
or otherwise;
(b) allow
such a scheme to set different case-fees on any basis, including in respect of
different descriptions of financial service provider, such descriptions including
in particular descriptions by reference to –
(i) whether the
provider is registered with or holds a permit or other authorization from the
Commission under a Law mentioned in Article 9(1), and
(ii) whether
the provider has volunteered to be liable for a levy under paragraph 4;
(c) allow
such a scheme to –
(i) require payment
of case-fees at or in respect of any stage of the handling of a complaint by
the OFSO, or a later time when a levy is payable by a respondent, or at any
other time, and
(ii) provide
for the OFSO to waive case-fees in circumstances specified in the Regulations
or at its discretion;
(d) require
the OFSO, before prescribing or varying such a scheme, to consult on it, and to
refer an increase in a fee to the Bailiff to be considered by Jurats if that
increase is disputed by a consultee or in other circumstances specified in the
Regulations;
(e) provide
for enforcement of payment of case-fees, including powers to demand information
required in order to calculate fees.
4 Levies
(1) The
States may by Regulations provide for levies to be payable by financial service
providers to the OFSO in respect of the expenses of the OFSO that are not met
by case-fees under paragraph 3.
(2) Without
prejudice to the generality of sub-paragraph (1), Regulations under that
sub-paragraph may –
(a) prescribe
descriptions of financial service provider that must pay a levy;
(b) prescribe
other descriptions of financial service provider that may volunteer to pay a
levy, in return for lower case-fees or for other favourable terms in relation
to any fees or levies;
(c) distinguish
in any manner, for the purposes of clauses (a) and (b), between
different descriptions of financial service provider, such descriptions
including in particular descriptions by reference to whether the provider is
registered with or holds a permit or other authorization from the Commission
under a Law mentioned in Article 9(1);
(d) provide
for the manner in which the total amount required by the OFSO in levies is to
be determined;
(e) give
the OFSO the power to demand information from persons who may be liable to pay
a levy, being information required in order to calculate the levy;
(f) give
the Commission the power to demand such information on the OFSO’s behalf;
(g) specify
(or permit the Minister to determine) limits to the amounts that may, in any
period, be raised in total by way of levies, or charged to any one financial
service provider;
(h) give
the OFSO the power to prescribe a scheme, by publishing the scheme or
otherwise, under which the liability for the levy is to be divided among those
liable, the amounts of levy are to be calculated, and the persons liable are to
be notified;
(i) prescribe
the time and manner in which levies must be paid;
(j) provide
for appeals against or reviews of decisions in relation to levies, and for the
effects on liability to pay pending determination of the appeal or review;
(k) provide
for enforcement of payment of levies (including enforcement of provision of
information required in order to calculate levies), including orders for
payments of costs of enforcement by persons connected with the person liable to
pay.
5 Other fees, donations and
borrowing
(1) Without
prejudice to the other means by which the OFSO may receive funds to enable it
to perform its functions, the OFSO may –
(a) contract
to charge a fee for providing any service, information or other item in
pursuance of any of its functions, if it is not obliged to provide that service
or item gratuitously to the person with whom it contracts;
(b) accept
a grant or donation, whether or not subject to conditions, but only if it
considers that it can satisfactorily maintain its independence, integrity and
reputation; and
(c) borrow,
subject to sub-paragraph (2).
(2) The
Minister may, after consulting the Minister for Treasury and Resources,
prescribe by Order either or both of –
(a) a
maximum amount up to which the OFSO may borrow; and
(b) a
requirement for the OFSO to obtain approval before borrowing, in a manner
specified and from a person specified in the Order (whether the Minister or any
other person).
6 Reserve and investment
The OFSO may, in
accordance with any guidelines set by the Minister for Treasury and
Resources –
(a) accumulate
a reserve of such amount as it considers necessary; and
(b) invest
that reserve and any other of its funds and resources that are not immediately
required for the performance of its functions.
7 Exemption from income tax
The income of the OFSO is
not liable to income tax under the Income
Tax (Jersey) Law 1961.
Schedule 3
(Article 9(1)(h))
Relevant Pension Business
1 Relevant pension business defined
Relevant pension business
is any business so far as it comprises the choice, establishment or operation
of a pension scheme, within the meaning of paragraph 2.
2 Pension scheme
(1) A
pension scheme is a fund, scheme or other arrangement, constituted in one or
more instruments or agreements, that falls within either or both of sub-paragraphs (2)
and (3).
(2) A
fund, scheme or other arrangement falls within this sub-paragraph if it is, or
is held out as being or as capable of being –
(a) a
fund described in Article 131G(1) of the Income
Tax (Jersey) Law 1961;
(b) a
“registered pension scheme” or a “recognised overseas pension
scheme”, as each is defined in section 150 of the Finance
Act 2004 of the United Kingdom, as amended from time to time; or
(c) recognized
under legislation of any country or territory other than Jersey and having an
effect equivalent to that of the legislation mentioned in clauses (a)
and (b).
(3) A
fund, scheme or other arrangement falls within this sub-paragraph if it has, or
is held out as having or as being capable of having, effect so as to provide
benefits to or in respect of persons –
(a) on
retirement from an employment or all employment; or
(b) in
similar circumstances.
(4) For
the purpose of sub-paragraph (3) it is irrelevant whether the fund, scheme
or other arrangement –
(a) has
any effect on any liability to tax;
(b) has,
or is held out as having or as being capable of having, effect so as to provide
benefits to or in respect of other persons or in other circumstances linked to
death, age or employment.
Schedule 4
(Article 9(1)(i))
Relevant credit business
1 Relevant credit business
defined
Relevant credit business is any business so far as it
comprises –
(a) provision
of credit under credit agreements;
(b) credit reference agency
business;
(c) debt-adjusting;
(d) debt-counselling;
(e) debt-collecting; or
(f) debt
administration,
as those terms are defined by the following paragraphs of this
Schedule.
2 Credit
Credit includes –
(a) a
cash loan;
(b) a
loan secured against immoveable property, whether by hypothecation or by
mortgage or in any other manner;
(c) the
financial accommodation provided in the letting of goods (as defined in the Supply of Goods
and Services (Jersey) Law 2009) under a hire-purchase agreement
(as so defined), or in the selling of goods under a conditional sale agreement
(as so defined); and
(d) any
other form of financial accommodation.
3 Credit agreement
A credit agreement is an
agreement under which credit is provided to a person (“the debtor”),
being an agreement between that debtor and the person providing the credit
(“the creditor”).
4 Credit reference agency business
Credit reference agency
business is the furnishing of persons with information relevant to the
financial standing of other persons, being information collected for that
purpose by the person furnishing the information.
5 Debt-adjusting
Debt-adjusting is, in
relation to debts due under credit agreements –
(a) negotiating
with the creditor, on behalf of the debtor, terms for the discharge of a debt;
(b) taking
over, in return for payments by the debtor, the debtor’s obligation to
discharge a debt; or
(c) any
similar activity concerned with the liquidation of a debt.
6 Debt-counselling
Debt-counselling is the
giving of advice to debtors about the liquidation of debts due under credit
agreements.
7 Debt-collecting
Debt-collecting is the
taking of steps to procure payment of debts due under credit agreements.
8 Debt administration
Debt administration is
the taking of steps –
(a) to
perform duties under a credit agreement on behalf of the creditor; or
(b) to
exercise or to enforce rights under such an agreement on behalf of the
creditor, so far as the taking of such steps is not debt-collecting.